Abela & Ors v Baadarani

If parties agree English jurisdiction, England is presumptively the proper forum unless there is a compelling reason otherwise; retrospective validation of foreign service is exceptional and will only be justified where the method of service was valid under the local law or there are truly exceptional circumstances; an extension of the claim form to rescue a stale claim is a weak reason and is unlikely to be granted.

The claimants alleged fraudulent misrepresentation and conspiracy arising from the purchase of shares. Proceedings were issued in England shortly before expiry of the limitation period and permission was obtained to serve out of the jurisdiction. The defendant argued the English court was not the proper forum, that service out of the jurisdiction was invalid because papers were delivered to his Lebanese lawyer, and that the proceedings were time-barred. The High Court declared the alternative service effective; the Court of Appeal examined forum conveniens, the validity of service on the Lebanese lawyer, and the propriety of retrospective validation and extensions of the claim form. The central issue was whether steps said to have brought the claim to the defendant's attention in Lebanon constituted good service and whether the English court should validate them retrospectively.

1. Disposition: The Court of Appeal allowed the defendant's appeal, set aside the declaration that service on the Lebanese lawyer on 22 October 2009 amounted to good service, and indicated that, absent compelling contrary submissions, the action should be dismissed.
2. Forum (paras 5–9): the judge was right to treat England as the proper place where the parties had agreed English jurisdiction; such an agreement will ordinarily be decisive unless there are extremely strong reasons to displace it. Proceedings begun elsewhere may suffice to displace the agreement but the claimants' undertaking not to take further civil steps in Lebanon removed that obstacle. The appellant bore the burden of showing the judge was wrong to accept England as the proper forum; the asserted alternatives were rejected.
3. Retrospective validation of foreign service (paras 17–31): the court must exercise great caution before retrospectively validating a method of service not authorised by an English order when made. Retrospective validation under CPR must usually be grounded on the proposition that the method of service was valid under the local law. The claimants bore the onus of proving that the delivery to the Lebanese lawyer amounted to valid service under Lebanese law; they did not discharge that onus. The general power of attorney did not, without further instruction, authorise formal acceptance of foreign service; the factual evidence did not establish that the lawyer accepted service on the defendant's behalf. Accordingly the judge was wrong to validate retrospectively the delivery to the Lebanese lawyer.
4. Extensions of claim form (paras 33–34): the extension discretion to preserve an otherwise stale claim is to be exercised cautiously. A weak reason for extension (merely to preserve a time-barred claim resulting from dilatory issue close to limitation expiry) does not justify extension. The court relied on established guidance that weaker reasons make extension less likely to be granted.
5. Precedential treatment (paras 21–22, 30–31): the court applied and followed authority recognising the court's power to order or direct methods of alternative service (including the existence of jurisdiction to order alternative service for out-of-jurisdiction claims), but emphasised that such powers are exceptional and constrained by local-law validity and established rules on service and limitation.
6. Orders: Appeal allowed; declaration validating the steps of 22 October 2009 set aside; suggested dismissal of the action subject to any compelling contrary submissions; costs and any consequential orders for limitation and service matters were left to be determined in accordance with that disposition.

• High Court (Chancery Division): Sir Edward Evans-Lombe, [2011] EWHC 116 (Ch) – refused to set aside permission to serve out of the jurisdiction and declared that service on the Lebanese lawyer amounted to good service.
• Court of Appeal (Civil Division): Arden LJ, Longmore LJ and McFarlane LJ, [2011] EWCA Civ 1571 – allowed the appeal, set aside the declaration validating service of 22 October 2009, and indicated the claim should be dismissed (this judgment).